Some married people seem to believe that their estate planning is sufficient if all assets go to the surviving spouse at death and let the surviving spouse take care of subsequent estate planning if they so choose.
People taking this approach often title (own) their real property and bank accounts in the form of jointly tenancy with right of survivorship; they designate each other as their sole death beneficiary on retirement accounts, life insurance, annuities etc.; and they name each other as the sole beneficiary in their wills.
Is the foregoing approach sufficient?
In the long run, not considering what happens after the death of the first spouse is often nearsighted. The surviving spouse may be overwhelmed.
Let us examine some important reasons why spouses need to plan together to protect both the surviving spouse during incapacity and the family at the death of the surviving spouse.
Who will take care of the surviving spouse if he or she is incapacitated?
If the surviving spouse is already incapacitated when the deceased spouse dies, or later becomes incapacitated, and does not already have the necessary legal powers of attorney in place regarding financial, property, personal and health care decisions then a court appointed conservatorship of the person and/or estate may become necessary.
Such conservatorships may be avoided had the incapacitated spouse authorized agents to act on his or her behalf.
Durable powers of attorney for finances, property and personal care and advance health care directives for health care decisions enable authorized persons – often the children or other relatives – to take charge of important affairs without going to court. This saves time, money and trouble for all concerned.
Next, what about the transfer of assets at the surviving spouse’s death? While California law does not require a probate to transfers assets from a deceased to a surviving spouse only, the same is not true regarding transfers from the surviving spouse’s own estate to the children or to anyone else, other than a subsequent spouse.
Most people want their loved ones to inherit with the least amount of aggravation and cost and so choose to transfer their assets into a living trust that will transfer assets to their intended death beneficiaries either outright or in an ongoing trust, as desired.
Some married couples simply take it for granted that after the first spouse dies the surviving spouse will be willing and able to actually take care of all necessary estate planning.
Based on this wishful assumption, some married people will not deal with long range estate planning.
There are numerous potential flaws with such wishful thinking. It is not uncommon for the surviving spouse to procrastinate and for events to overtake him or her.
The surviving spouses may either already be incapacitated when the first spouse dies or later become incapacitated, and thus unable to execute estate planning documents.
The surviving spouse might be more vulnerable to undue influence coercion, unduly pressure or menace – either from family or friends. That is, the surviving spouse under such influence may sign documents that really express the self-serving wishes of other people.
As a general rule, therefore, it is good for married people (in a stable marriage) to motivate each other to take care of long term estate planning that looks beyond the death of the first spouse.
Expecting the surviving spouse to get his or her affairs in order, only after the death of his or her spouse, could amount to Russian roulette with the personal well being of the surviving spouse.
It may also jeopardize the desired and most efficient distribution of the estate to the couple’s loved ones when the surviving spouse dies.
Dennis A. Fordham, attorney (LL.M. tax studies), is a State Bar Certified Specialist in Estate Planning, Probate and Trust Law. His office is at 55 First St., Lakeport, California. Dennis can be reached by e-mail at This email address is being protected from spambots. You need JavaScript enabled to view it. or by phone at 707-263-3235. Visit his Web site at www.dennisfordhamlaw.com .